Thousands of Germans get “porn troll” letters over streaming video

Berlin law firm defends against claimed predatory behavior by "The Archive."

As we reported last year, a Regensburg-based law firm, Urmann and Colleagues (U+C), began sending out letters to at least 10,000 people across Germany, ordering them to stop viewing videos on the streaming site Redtube.com (NSFW) and pay €250 ($345) to a shady Swiss company called The Archive. That money, the letter stated, would put a stop to future litigation.

This week, the intellectual property dispute appears to have escalated.

On Monday, Berlin-based law firm Werdermann published a statement (Google Translate) on its website where it says it has been reaching out to people who have received such letters. The firm says since last week, it has conducted “more than 1,000 telephone interviews with concerned persons.” Wedermann appears to be leading the charge in defending people who it believes have been wrongly accused of copyright infringement, and the firm is actively soliciting new clients caught up in this situation.

Werdermann’s German-language statement goes on to say that these people all appear to be customers of Deutsche Telekom as well, which is likely how U+C got its customer details to begin with.

"It is possible that other ISPs will be obliged to provide information in the coming days, or already were, so that customers from Kabeldeutschland [another major German ISP] may get other warnings from Regensburg," Johannes von Rüden, a Werdermann attorney, wrote.

Ars attempted to contact U+C and Werdermann, but they did not immediately respond.

The German magazine, Stern, which has been reporting extensively (Google Translate) on this issue, provided Ars with a redacted copy of one of the letters sent out by U+C. Ars is publishing the four-page, German-language letter in full for the first time here. Additionally, Sternreported (Google Translate) Tuesday that some online scammers have now been inspired by this affair and are crafting and distributing e-mails modeled after U+C's letters. These e-mails ask for more money than the original €250, and even include malware attachments.

A shady Swiss firm

According to Werdermann, The Archive filed a demand on Sunday with the Regional Court of Cologne in an attempt to compel Deutsche Telekom to hand over the names behind the 1,000 IP addresses that it believes unlawfully accessed an adult film called “Amanda’s Secrets.” The filing was made in the Cologne court as Deutsche Telekom sits in this particular jurisdiction.

Further Reading

The Archive has apparently had “procedural representational rights” to the “Amanda’s Secrets” film, and a few other films, from a company called Matrazensport since July 2013. According to The Archive’s German-language business filing with Swiss authorities, its primary business is the “acquisition and evaluation of audio media and audio-visual media of any kind.”

Von Rüden said in his statement that his firm had requested “expedited proceedings” and was hoping to see and possibly challenge this request. But it appears that those efforts to halt the personal data handover were in vain.

On Monday, December 9, German newspaper Die Weltcited (Google Translate) an unnamed Cologne judge’s decision to compel Telekom to handover the names and addresses of the alleged infringers to The Archive. That judge apparently cited an infringement of Section 19 of the Copyright Act, noting that “unauthorized public access” to this film on a “file-sharing website” is illegal.

Von Rüden, however, further said in his Monday statement that individual users should not be held liable if a streaming website posts unauthorized videos. “For serious users of erotic portals, it is not possible to recognize at first glance where the uploaded files came from and whether they come from unlawfully manufactured [originals],” the Berlin-based lawyer noted.

"Hoodwinked"

Both Werdermann and German media cite court documents that say that The Archive has been using a traffic analysis software called “gladii 1.1.3,” which originally identified the 1,000 IP addresses across a particular three-hour period. But software of this type is typically used on file-sharing networks, not to collect data from a streaming site.

“We have deliberately held back our speculation, and we are not participating,” von Rüden added. “But from the case file, it is still not clear how exactly ITGuards’ gladii [claims to have identified the data]. The designs are strongly reminiscent of the usual explanations on the functioning of software for monitoring file sharing networks. The fact that the data was downloaded and then listened to and viewed by an employee is probably [nonsense]. The data may have [even] been issued in breach of the Data Protection Act. This could be punishable, but in any case, has been improper. The District Court of Cologne has apparently been hoodwinked.”

Unlucky 'dube

At least one user accused of infringement suspects that he was tricked into visiting redtube.com via a spoofed URL.

TKowalski reported (Google Translate) in a comment on a legal blog that “266403.retdube.net” turned up in his browser history.

“Well, I must admit that I have been one or two times to the specified page, if not always voluntary (redirects and such). Therefore, I can’t say exactly what was there,” he wrote about the spoofed address. “But if there is a click-ahead address, or redirect, or if the link has been loaded into a pop-up, you can’t even find out. The site, in any case, is no longer accessible.”

The retdube.net URL now appears to forward to the bona fide redtube.com address, but it could have also been acting as a false front for the real thing. However, it is plausible that previously someone was intercepting traffic to the legit site and adding in false links or pop-ups as a way to induce possible copyright infringement.

Last week, another German legal blog published (Google Translate) what it said was an e-mail that a victim had received from his ISP saying that his IP address had been used as part of a “virus attack” just hours after he allegedly visited Redtube.com.

There are also two possibilities: either this is a program that spies on the Internet traffic on the infected computer and this data is passed along to interested third parties (in this example, the rights holder) or allows third parties access to the infected computer of the user to use to retrieve the streams at Redtube.

Redtube's US-based lawyer, Hal Milstein, did not immediately respond to Ars' request for comment, but he did say that he was not familiar with the German situation.

Still, other German lawyers are skeptical that this seemingly predatory tactic will eventually be successful.

“The actual case is completely unknown legal territory to courts,” Domick Boecker, a tech lawyer based outside of Cologne, told Ars. “The situation was discussed by lawyers and professors beforehand, but no clear and predominant opinion was found.”

“U+C [has done] a lot of ‘filesharer-hunting.’ Filesharing is pretty clear, because the document to be shared is made available to [third-parties] by the sharer. This case is about streaming. If you watch a stream, you don't make available the content to [third-parties]—so the main argument in file sharing-cases is missing now. The infringement could be an illegal reproduction, but you don't get a classical reproduction, but usually a temporary one, which is transient and incidental of the technical process, which could be privileged by Section 44a of the German Copyright Law.”

Editor's note: Ars would like to thank Tyler Luiten for his extensive German translation help.

So are the lawyers basically saying that viewing streaming content is analogous to watching a film at the cinema where the owner doesn't have permission to screen said film but they normally do have the correct permissions, while file sharing is analogous to buying the same film on a dodgy dvd/blu ray where it's clear it's not an original product?

There certainly are a lot of articles relating to internet porn on Ars lately.

That is because these trolls like to attack Porn viewers because a certain percent will pay anything to keep such activities quiet. "we see that you watched anal sorority 97 the other day. It would be a shame if your family and friends found out about that minister."

If I watch a streaming movie, or download a movie or whatever, it is not my fault if the distributor doesn't have the permission to give it to me. I am not the pirate, the distributor is. That's the only reason downloading a game through bitTorrent is piracy, but downloading it throw mediafire or whatever is not: in bitTorrent you are distributing the game as well as receiving it, and you don't have the legal right to.

The fact that judges, legislators and people in general fail to make this distinction justify me going "fruck all of you I'm not spending my hard earned money on your crap!"

My cellphone operator has several free games on their website, reserved for their costumers. If I download them, am I in the wrong? My local cafe has a big screen with sports cable on. If I watch it, am I in the wrong? My mom gave me 5€ each week when I was young. If I accept it, is it theft? My local radio DJ plays loads of different music. If I listen to it, am I infringing copyright?

If I watch a streaming movie, or download a movie or whatever, it is not my fault if the distributor doesn't have the permission to give it to me. I am not the pirate, the distributor is. That's the only reason downloading a game through bitTorrent is piracy, but downloading it throw mediafire or whatever is not: in bitTorrent you are distributing the game as well as receiving it, and you don't have the legal right to.

The fact that judges, legislators and people in general fail to make this distinction justify me going "fruck all of you I'm not spending my hard earned money on your crap!"

My cellphone operator has several free games on their website, reserved for their costumers. If I download them, am I in the wrong? My local cafe has a big screen with sports cable on. If I watch it, am I in the wrong? My mom gave me 5€ each week when I was young. If I accept it, is it theft? My local radio DJ plays loads of different music. If I listen to it, am I infringing copyright?

Yeah, dark side it is.

You know, I'm a registered Pirate Party member. I mostly agreed with you at first and then you went off the deep end by the end. There are many good arguments against the copyright monopoly, but yours is barely coherent.

I am eagerly awaiting to find out how they actually managed to identify those IP's as doing any infringement, since to my knowledge the only way for them to do so would be to intercept the traffic at a point where they shouldn't be able to, or by simply infecting the "infringers" computer with monitoring software (which possibly did the actual "infringement" as suggested in the article). As far as I can see none of those are legal.

You know, I'm a registered Pirate Party member. I mostly agreed with you at first and then you went off the deep end by the end. There are many good arguments against the copyright monopoly, but yours is barely coherent.

Good enough for me, thanks. I know full well I'm not coherent or even right in many respects, that's why I call it the dark side... It is what it is.

Oh goody, we've taught the world our despicable business practices. Now everybody who doesn't want to work for a living and is too scared to do real crime will take up "Prenda Practices". The new catch-phrase for getting screwed will be "I've been Prenda'd".

Bear in mind that with the intellectual property provisions of these "free trade" deals, governments are trying to strengthen the laws regarding streaming media. And it seems like silently misdirecting traffic routing is getting more and more common these days. So this could be a growth area!

Oh goody, we've taught the world our despicable business practices. Now everybody who doesn't want to work for a living and is too scared to do real crime will take up "Prenda Practices". The new catch-phrase for getting screwed will be "I've been Prenda'd".

would be funny if it turned out the Prenda people were related to this crap, using some of the proceeds from their US lawsuits to fund the european expedition

So are the lawyers basically saying that viewing streaming content is analogous to watching a film at the cinema where the owner doesn't have permission to screen said film but they normally do have the correct permissions, while file sharing is analogous to buying the same film on a dodgy dvd/blu ray where it's clear it's not an original product?

IANAL, but German law allows personal, non-commercial copies, unless you're bypassing copy protection or the original is "obviously" illegitimate. On a site like redtube with hosted content, it is probably not obvious if the content is licensed or not. (Sites that stream movies that are still in theatres, could likely be considered obviously illegitimate, though.) So that's one possible defence these people have going for them.

The other thing is the question whether streaming constitutes a copy in the first place. That's untested in German courts, AFAIK. If it isn't copying, it's just watching from an illegitimate source (like in your cinema example), which isn't a crime.

And of course the most important question is: How did they get those addresses in the first place. I cannot think of any legal way at all.

But all of this doesn't matter if people just pay, because defending themselves would be more expensive and potentially disruptive to their reputation. Good thing it turned noisy so quickly.

They're going after people who view streaming content now? I mean I could sort of understand the logic beyond going after file sharing services, but media streams?

The letter provided says (my loose translation):

The technically necessary intermediate storage that occurs while streaming the said work represents the production of a copy in the sense of §16 UrhG (Section 16 Copyright Law), which is a right reserved exclusively to the creator and/or rights owner.

Huh, suing the streamers? Is there a precedent for this (in the US in particular, since that's where I live)? I'm well aware of streaming site operators being sued, but this is the first case I'm aware of where the streamers themselves were sued.

Maybe I have stereotypical prejudices, but I can't imagine too many germans being bothered over being called out for viewing porn.

I'm sure there are plenty who wouldn't want to be publicly identified. More importantly however, is that 250€ is just low enough to make it seem reasonable to pay in order to avoid additional legal troubles/lawsuits, regardless of whether the person cares if anyone knows they watched porn.

Quote:

Also, I believe these guys are going to find out the hard way just how vehemently Germans value the personal data privacy.

It was a German judge who ordered Telekom to hand over the names and IP numbers, so those privacy-loving Germans are going to have to take it up with the judge.

They're going after people who view streaming content now? I mean I could sort of understand the logic beyond going after file sharing services, but media streams?

The letter provided says (my loose translation):

The technically necessary intermediate storage that occurs while streaming the said work represents the production of a copy in the sense of §16 UrhG (Section 16 Copyright Law), which is a right reserved exclusively to the creator and/or rights owner.

So that's their legal argument.

That seems like a very dangerous precident to set. When Ars pays a fee to use a copyrighted image in an article, does that fee also include us Arsians, who have to download the image to our computer to see it? Sure, we generally do not retain the image (temporary internet files are, generally, temporary, after all), but we still have to produce a copy.

If that argument holds, no german will ever be able to use the internet again. Any copyrighted text, video, or video on any website cannot be downloaded and viewed, and you cannot even go to the website to check to see if it's public domain / creative commons-like licensing, because what if it's not? You've just violated potentially dozens of copyrights... by googling the name of the company suing you. Even the ads on the sidebar might be copyrighted and you've violated it by viewing the advertisement!